No. 2.

Mechelen v. Wallace, 7 Adol. & Ellis, 54 n. - 55 n.

Talfourd, Serjt., now moved for a new trial, on the grounds that the jury were misdirected, and that the verdict was against evidence. The agreement for taking the premises and paying £170 rent was a complete bargain; there was a time fixed from which the rent was to run, and the plaintiff had taken actual possession. The stipulation for furnishing, if it rested on anything more than the honour of Wood (which the plaintiff appears by his letter to have relied upon), could, at most, be only the subject of a cross

action. If this were otherwise, the defendant's claim of [55 n.] rent might be answered as long as a single chair or table was not perfectly completed and sent in. There was no evidence that the agreement for rent was intended to be conditional. Regnart v. Porter, 7 Bing. 451, was cited for the plaintiff at the trial; but there the rent was to commence at a future day, and the works engaged for by the landlord were to be done immediately; the performance of these, therefore, might justly be regarded as a condition precedent in point of time. In note (4) to Pordage v. Cole, 1 Wms. Saund. 320 a, Mr. Serjt. Williams lays it down that, "If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act;" and many authorities are cited.

Lord DENMAN, C. J. If the performance of the furnishing was not left to the defendant's honour, the stipulation respecting it is part of the agreement. The observation upon it in the letter to Wood is only reproach to him. In my opinion there was evidence that the payment of rent was intended to be conditional; the house to be rented was to be a furnished house and no other.

PATTESON, J. I do not see how the contracts for rent and for furnishing can be separated. I think, with my Lord, that there was evidence of the agreement being conditional.

COLERIDGE, J., concurred.

(LITTLEDALE, J., was absent.)

Rule refused.

Nos. 1, 2. Dunk v. Hunter; Mechelen v. Wallace. Notes.

ENGLISH NOTES.

The Statutes relating to distress are numerous, and for their effect and the cases immediately depending upon them, reference is made to Chitty's Statutes, Tit. "Landlord and Tenant." The cases selected in this work relate chiefly to the points depending on the common law.

The application of the rule of common law laid down by the principal cases is now (under the Judicature Acts) so far modified that a tenant in possession under an executory agreement for a lease is treated by the Courts as in all respects in the same position as if he held under a lease made pursuant to the terms of the agreement. So that if the agreement is such that the Court in an action for specific performance could order a lease at a fixed or minimum rent, the tenant in possession under the agreement may be distrained upon for that rent. Walsh v. Lonsdale (C. A. 1882), 21 Ch.D. 9, 52 L. J. Ch. 2, 46 L. T. 858, 31 W. R. 109. According to the judgment of the Master of the ROLLS (Sir GEORGE JESSEL) in that case, the rights and duties between the landlord and the tenant in possession under an agreement for a lease of which the Court would order specific performance are to be regarded by the Court as constituted under the Judicature Acts in the same way as if a lease had been made in accordance with the agreement. This view has been repeatedly followed and approved: by CHITTY, J., in Allhusen v. Brooking (1884), 26 Ch.D. 559, 53 L. J. Ch. 520, 51 L. T. 57, 32 W. R. 657; by FIELD, J., in Re Maughan ex parte Monkhouse (1885), 14 Q. B. D. 956, 958, 54 L. J. Q. B. 128, 33 W. R. 308; and by COTTON, L. J., in Lowther v. Heaver (C. A. 1889), 41 Ch. D. 248, 264, 58 L. J. Ch. 482, 60 L. T. 310, 37 W. R. 465. But it has been held by the Court of Appeal that this rule cannot be applied by a Court which has not jurisdiction to order specific performance. Such as a County Court, where the value of the premises exceeds £500. Foster v. Reeves (C. A. 1892), 1892, 2 Q. B. 255, 61 L. J. Q. B. 763, 67 L. T. 537, 40 W. R. 695.

It will be observed that possession by the person who is distrained against is essential to the doctrine laid down in Walsh v. Lonsdale (supra). And so, where a landlord has resumed possession of the premises under an order of the Court made in an action of specific performance brought by him against the party who agreed to take the lease, he was held not entitled to distrain for the arrears of rent accrued while that party had been in possession. Murgatroid v. Old Silkstone & Dodsworth Coal & Iron Co. (20 Nov. 1895), 65 L. J. Ch. 111, 44 W. R. 198.

By the common law the chattels distrained remained only as a secur

Nos. 1, 2. - Dunk v. Hunter; Mechelen v. Wallace. Notes.

ity in the hands of the distrainer. By the 2 Wm. & M. sess. 1, c. 5, power was given to sell the goods after the expiry of 5 days, now extendible at the request of the tenant to 15 days, 51 & 52 Vict. c. 21, s. 6. The power of sale was extended and further defined by 11 Geo. II. c. 19, s. 10.

The right of distress existed at common law only where there was a relation of tenure including the ordinary relation of landlord and tenant. It might also be expressly reserved as incident to a rent created by a deed or will, in which case the rent was called a rent-charge. Where a rent was reserved by a deed or will without expressly giving a power of distress it was called a rent-seck, and there was no power at common law to distrain for such a rent. Bradbury v. Wright (1781), 2 Dougl. 624. And although quit-rents arising from ancient tenures presumably created before the statute of quia emptores could be distrained for, the power of sale given by the Act of William & Mary (which only gave the remedy for rents due upon "any demise, lease, or contract ") did not extend to them. But by the Act 4, Geo. II. c. 28, s. 5 the remedy of distress and sale was extended to cases of rent-seck as well as to rents of assize and chief-rents (commonly included in the expression quitrents). The only other kind of rent known at common law is a rentcharge; which is a rent reserved by deed or will with express power to distrain for the same. The power of sale under 11 Geo. II. c. 19, s. 10 clearly applies to this as well as to any other rent which may be distrained for.

At common law rent cannot be distrained for after the determination of the tenancy although the tenant holds over. Williams v. Stiven (1846), 9 Q. B. 14, 15 L. J. Q. B. 321, 10 Jur. 804, and see recital in 8 Ann. c. 14, s. 6. But by the section of the Statute just referred to, the rent in arrear may be distrained for, provided (s. 7) the distress be made within six months after the determination of the lease and during the continuance of the landlord's title or interest and during the pos session of the tenant. But, unless a new tenancy at an agreed on rent has been created by express agreement or can be implied by the payment of rent or otherwise, the landlord cannot distrain for rent accrued after the determination of the tenancy by expiration of the lease or by the landlord's notice to quit. The landlord has for such rent only his action for double value under the Statute 4 Geo. II. c. 28, s. 5, or for use and occupation. Jenner v. Clegg (1832), 1 Mood. & R. 213; Alford v. Vickery (1842), Car. & Marsh. 280. But the double rent under the Statute 11 Geo. II. c. 19, s. 18, where the tenant has given notice and yet holds over, may be distrained for. But this holds good only where the tenancy is determined by the tenant's notice, and does not apply where the tenant gives a notice not good in itself which is accepted

Nos. 1, 2.

--

Dunk v. Hunter; Mechelen v. Wallace. Notes.

by the landlord. Johnstone v. Huddlestone (1825), 4 B. & C. 922, 7 D. & Ry. 411.

Distress may be made for the whole rent reserved on letting of furnished lodgings. For the rent issues out of the land, although it may be enhanced by the value of the furniture. Newman v. Anderton (1806), 2 Bos. & P. (N. R.) 224. But where there is no demise of the land the case is different; and where A., the owner of lace-machines, was permitted to place and work them in the factory of B., who for a consideration supplied power, it was held that B. could not distrain the looms for the stipulated payment. Handcock v. Austin (1863), 14 C. B. (N. s.) 634, 32 L. J. C. P. 252.

In Daniel v. Stepney (Ex. Ch. 1874), L. R., 9 Ex. 185, 41 L. J. Ex. 208, 22 W. R. 662, it was held by the Exchequer Chamber, reversing the judgment of the Court of Exchequer, that a power of distress given by agreement over lands other than those out of which the rent issues may be validly exercised by the landlord against an assignee of the lease who took with notice of the agreement.

AMERICAN NOTES.

Dunk v. Hunter is cited in 2 Wood on Landlord & Tenant, p. 1307; 5 Am. & Eng. Cyc. of Law, p. 706, and in 1 Taylor on Landlord and Tenant, sects. 42, 561; and its doctrine is supported by Wells v. Hornish, 3 Penrose & Watts (Penn.), 30; Jacks v. Smith, 1 Bay (So. Car.), 315; Valentine v. Jackson, 9 Wendell (New York), 302; Dutcher v. Culver, 24 Minnesota, 581; Thrasher v. Gillespie, 52 Mississippi, 840; Dailey v. Grimes, 27 Maryland, 440.

In Marshall v. Giles, Treadway (So. Car.), 637, the purchaser of premises at a judicial sale notified the tenant to remove at a certain time or pay one hundred dollars a month rent, but the tenant refused to do either. Held, that no distress would lie, for there was no agreement to pay a fixed rent.

In Clark v. Fraley, 3 Blackford (Indiana), 264, an agreement by the tenant to deliver one third of the corn to be raised on the premises as rent was held not to justify distress. But one third of the tolls of a grist-mill as rent may be distrained for. Fry v. Jones, 2 Rawle (Penn.), 11. Rent payable in anything susceptible of valuation may be distrained for. Fraser v. Davie, 5 Richardson Law (So. Car.), 59 (rent of fifty bales of cotton).

In the Indiana case it was said the rent was uncertain because it depended on weather, cultivation, and industry, but in the Pennsylvania case it was pronounced susceptible of certainty by accounting. In Gilmore v. Ontario Iron Co., 22 Hun (New York Supr. Ct.), 391, an agreement to pay a certain sum per ton for ore removed from the premises and to remove at least a certain fixed amount yearly, was held sufficiently certain. See Smith v. Colson, 10 Johnson (New York), 91; Wilkins v. Taliafero, 52 Georgia, 208.

In Diller v. Roberts, 13 Sergeant & Rawle (Penn.), 60; 15 Am. Dec. 578, it was held that distress would not lie for a second year's rent, the tenant holdVOL. IX. 39

No. 3. Brown v. Metropolitan, etc. Life Assurance Society, 28 L. J. Q. B. 236.

ing over under an agreement that was not entirely applicable to the second year. "There must be a reservation of a certain rent."

Mechelen v. Wallace is cited by Mr. Wood, 1 Landlord & Tenant, sects. 47, 287, 1348, and in 1 Taylor on Landlord and Tenant, sect. 383.

The remedy of Distress is unpopular in this country. It was abolished half a century ago in New York. It never existed in New England. In North Carolina, Alabama, Ohio, Mississippi, Missouri, and Tennessee it does not exist. It prevails in Wisconsin, and to a certain extent in Iowa. As modified by the Statute of 4 Geo. II. c. 28, it prevails in about a dozen of the States. See 2 Washburn on Real Property, p. 290; 2 Wood on Landlord and Tenant, sect. 539; note, 15 Am. Dec. 584, citing Dunk v. Hunter.

No. 3. BROWN v. METROPOLITAN COUNTIES LIFE ASSURANCE SOCIETY.

(Q. B. 1859.)

RULE.

THE assignee of a rent cannot distrain for arrears incurred previously to the assignment.

Brown v. Metropolitan Counties Life Assurance Society.

28 L. J. Q. B. 236-238 (s. c. 1 Ellis & Ellis, 832).

Mortgage. · Attornment. -Distress.-Arrears of Interest.-Rights of Assignee. [236] Plaintiff mortgaged his interest in leasehold premises and his goods thereon to V. and others; V. and others by deed assigned the mortgage, the debt and arrears of interest then due, and all their rights under the mortgage, to the defendants. The mortgage deed contained a clause, "to the intent that the said V. and others, their executors and assigns, may have for the recovery of the interest accruing on the principal money secured, the same powers of entry and distress as are by law given to landlords for the recovery of rent in arrear, the said B, the plaintiff, doth hereby attorn and become tenant from year to year to the said V. and others, their executors and assigns, of the said premises, at the yearly rent of £125 to be paid on the 23rd of March and 23rd of September." Plaintiff remaining in possession of the premises and goods, the defendants, after the assignment to them, entered and seized goods for arrears of interest due before the assignment:- Held, in an action of trespass, that the defendants could not justify such seizure under that clause; that such clause operated as a creation of a tenancy, for the purpose of giving such rights of distress as would arise under such tenancy; that V. and others, having conveyed away their estate before the seizure, could not have distrained either at common law or under the statute of Anne.